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Guardianship Versus Conservatorship – What Is the Difference?

Due to the inexorable deterioration of the cognitive faculties of a person with dementia, there is a progressive inability to carry out the various activities of everyday life.

There may come a time in the course of the disease when decisions such as living arrangements (independently, with relatives, assisted living or nursing care), medical treatment, financial affairs, and personal care can no longer be handled by the patient with dementia or Alzheimer’s. In these situations, someone must shoulder responsibility for managing that person’s affairs.

Ideally, in situations where a person Alzheimer’s disease, the affected person helps to make this decision before the the disease progresses. In the absence of someone with legal authority to act, a court may establish a guardianship of some sort.

“A guardian of the person is responsible for decisions about care provisions and living arrangements of the ward. A guardian of the estate, also known as a conservator, is charged with the ward’s property and financial affairs.”

Generally, when a person can no longer handle their personal care and affairs related to their finances and property, the court will appoint someone who has the legal authority to make decisions for the affected person. A guardian (or conservator) of the person is responsible for decisions about care provisions and living arrangements of the ward. A guardianship (or conservatorship) of the estate is charged with the ward’s property and financial affairs.

In some states, the term guardian is used for both scenarios. In other states, the term conservator is applied to both situations. There are states that specifically distinguish the two terms.

The court may appoint the same person to assume control of the ward’s life and property; this is called a plenary guardianship.

Guardian of the person
A guardian of the person (or simply, guardian) is authorized to make decisions involving the life and person of the ward, including health care decisions and place of residence. The guardian is tasked to arrange for the provision of appropriate personal care, maintenance, and support for the ward as well as for medical, dental and other necessary treatments.

State law establishes limits on the court-appointed guardian’s authority and prior court approval may be required for certain decisions. For example, the guardian generally has the authority to decide the ward’s place of residence, but some states will not permit the guardian to move the ward to a nursing home without prior court approval. A guardian’s right to authorize major medical treatment may also be circumscribed by state law.

The actions of a guardian of the person must consistently be in the ward’s best interests.

Guardian of the estate
A guardian of the estate (or simply, conservator) attends to the financial affairs of the ward, is tasked with the duty to manage, protect, preserve and dispose of the ward’s estate in accordance with the law and, like the guardian of the person, in furtherance of the ward’s best interests. The conservator has the obligation to use the assets of the estate to provide for the care and maintenance of the ward or a person whom the ward is legally bound to support.

The conservator generally is granted the authority to make decisions on the ward’s property and estate as if the conservator was the owner, but state law may prescribe some limits. For example, some states do not permit a conservator to execute a will on the ward’s behalf. State law may allow (or disallow) a conservator to transfer assets for particular reasons, such as to be eligible for Medicaid.

Note the despite the curtailments on authority, the conservator effectively wields considerable power over the ward’s life and person. If an individual has separate guardians of the person and of the estate, the guardian of the estate effectively exercises ultimate control since decisions by the guardian of the person that involve expenditures are subject to approval by the guardian of the estate.

Conflicts between the two are usually mediated by the court, whose rulings will be guided by the principle of the ward’s best interests.



     
  • A guardianship may become necessary because the family did not plan ahead. Even with early planning, a guardianship may be warranted if the incapacitated individual is being exploited.
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  • The costs of a living probate can be quite high. Attorney’s fees, court costs, and the costs of retaining a personal and financial guardian are all paid out of the incompetent person’s assets.
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  • A conservator must usually post a bond to protect the estate from mishandling. The bond premiums are paid by the estate—and are an unnecessary expense if the conservator is competent and trustworthy.